K. Kochunny alias Mannaraghat Elaya Nair vs P.C. Manavikrama Rajah Amyal

Sankaran Nair, J.—The order of attachment u/s 145, Criminal Procedure Code, of the elephant must be set aside as an elephant cannot be attached under that section.

But the Immovable property or the forest is under attachment and it is conceded that the elephant was not removed from the forest at the time of attachment. Neither of the parties is entitled to enter the forest after the attachment. The officer attaching the forest is, therefore, entitled to take possession of the elephant. It is clear that the owner or the person in possession of the forest in which the pit was dug is also entitled to the ownership or possession of the elephant and prima facie the person, if any, in whose favour, the order u/s 145 of the Criminal Procedure Code will be passed, will also be entitled to the possession of the elephant unless there are special circumstances in the case to show that he is not entitled to its possession. Assuming, then, without deciding, that the petitioner removed the elephant but of the pit and kept it within the boundaries of the forest attached, I am not now prepared to direct the elephant to be delivered to him. The order for delivery of possession to the party entitled can, in the circumstances, be made only after the final order u/s 145 of the Criminal Procedure Code concerning the Immovable property.